[Federal Register Volume 73, Number 45 (Thursday, March 6, 2008)]
[Rules and Regulations]
[Pages 12024-12030]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-4376]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 224
[Docket No. 080225302-8314-01]
RIN 0648-XF85
Endangered and Threatened Species; Endangered Status for North
Pacific and North Atlantic Right Whales
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: We, NMFS, completed a status review of right whales in the
North Pacific and North Atlantic Oceans under the Endangered Species
Act (ESA) in December 2006 and are listing the currently endangered
northern right whale (Eubalaena spp.) as two separate, endangered
species, North Pacific right whale (E. japonica) and North Atlantic
right whale (E. glacialis).
DATES: This rule is effective on April 7, 2008.
ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this final rule, are available
for public inspection by appointment during normal business hours at
the NMFS Alaska Region, 709 W. 9th Street, Juneau, AK 21688 (for North
Pacific right whale) or NMFS Northeast Region, One Blackburn Drive,
Gloucester, MA 01930 (for North Atlantic right whale).
FOR FURTHER INFORMATION CONTACT: For North Pacific right whale, Brad
Smith, NMFS Alaska Region (907) 271-5006; or Kaja Brix, NMFS, Alaska
Region, (907) 586-7235; for North Atlantic right whale, Mark Minton,
NMFS, Northeast Region, 978 281 9328, ext. 6534; and for general
information on listing, Marta Nammack, (301) 713-1401, ext. 180. The
final rule, references, petition, and other materials relating to this
determination can be found on our website at http://www.fakr.noaa.gov/
(North Pacific right whale) or http://www.nero.noaa.gov/ (North
Atlantic right whale).
SUPPLEMENTARY INFORMATION:
Background
On August 16, 2005, we received a petition from the Center for
Biological Diversity (CBD) to list the North Pacific right whale as a
separate endangered species under the ESA. CBD requested that we list
the North Pacific right whale as a new endangered species based, in
part, on recent scientific information that establishes new scientific
names for right whale species. On January 26, 2006, we issued our
finding that the petition presented substantial information indicating
that the petitioned action may be warranted (71 FR 4344), and we
requested information regarding the taxonomy and status of the North
Pacific right whale, its habitat, biology, movements and distribution,
threats to the species, or other pertinent information.
In December 2006, we completed a Review of the Status of the Right
Whales in the North Atlantic and North Pacific Oceans (NMFS, 2006). On
December 27, 2006, we published two proposed rules (71 FR 77694 - North
Pacific and 71 FR 77704 - North Atlantic) to list these species as
separate endangered species and invited public comment. These proposed
rules summarize the information gathered and the analyses conducted in
the status review of right whales in the North Pacific Ocean and in the
North Atlantic Ocean.
Listing Determinations Under the ESA
The ESA defines an endangered species as one that is in danger of
extinction throughout all or a significant portion of its range, and a
threatened species as one that is likely to become endangered in the
foreseeable future throughout all or a significant portion of its range
(sections 3(6) and 3(20), respectively). The ESA requires us to
determine whether any species is endangered or threatened because of
any one of the following factors: (1) the present or threatened
destruction, modification or curtailment of its habitat or range; (2)
overutilization for commercial, recreational, scientific, or
educational purposes; (3) disease or predation; (4) the inadequacy of
existing regulatory mechanisms; or (5) other natural or manmade factors
affecting its continued existence (section 4(a)(1)(A)-(E)). We are to
make this determination based solely on the best available scientific
information after conducting a review of the status of the species and
taking into account any efforts being made by states or foreign
governments to protect the species. The focus of our evaluation of the
ESA section 4(a)(1) factors is to evaluate whether and to what extent a
given factor represents a threat to the future survival of the species.
The focus of our consideration of protective efforts is to evaluate
whether and to what extent they address the identified threats and so
ameliorate a species' risk of extinction. The steps we follow in
implementing this statutory scheme are to: (1) delineate the species
under consideration; (2) review the status of the species; (3) consider
the ESA section 4(a)(1) factors to identify threats facing the species;
(4) assess whether certain protective efforts mitigate these threats;
and (5) predict the species' future persistence.
Organization of This Final Rule
First, we provide a summary of our analysis that concludes that the
North Pacific and North Atlantic right whales are separate species.
Next, we provide responses to public comments on the proposed rules to
list the North Pacific right whale as endangered (71 FR 77694; December
27, 2006) and the North Atlantic right whale as endangered (71 FR
77704; December 27, 2006). The determination that right whales in the
North Atlantic and North Pacific Oceans are two separate species
requires us to consider these species separately for the purposes of
listing under the ESA. Therefore, for each of the two species, we
follow with an extinction risk assessment, a summary of the ESA section
4(a)(1) factors, a summary of ongoing conservation efforts, and a final
conclusion on status for each of the two species.
Review of ``Species'' Delineation
We have concluded that right whales in the North Pacific and North
Atlantic exist as two species, the North Pacific right whale (E.
japonica) and the North Atlantic right whale (E. glacialis). The status
review indicates that separating the northern right whale into two
different species is warranted in light of the compelling evidence
provided by recent scientific studies on right whale taxonomy and
classification. Genetic data now provide unequivocal support to
distinguish three right whale lineages (including the southern right
whale) as separate phylogenetic species: (1) the North Atlantic right
whale (E. glacialis), ranging in the North Atlantic Ocean; (2) the
North Pacific right whale (E. japonica), ranging in the North Pacific
Ocean; and (3) the southern right whale (E. australis), historically
ranging throughout the southern hemisphere's oceans (Rosenbaum et al.,
2000). See either of the two December 27, 2006, proposed rules (71 FR
77694; 71 FR 77704) for further details. As discussed in these proposed
rules, because the southern right whale was already considered a
separate species when it was included in the Eubalaena spp. listing, we
clarify the regulatory text by
[[Page 12025]]
listing the southern right whale separately as E. australis.
Summary of Comments in Response to the Proposed Rule to List the North
Pacific Right Whale
The proposed rule to list the North Pacific right whale as a
separate, endangered species (71 FR 77694; December 27, 2006) announced
a comment period that closed on February 26, 2007. We have reviewed all
comments received during the comment period and incorporated updated
data and information into appropriate sections of this rule. We
received 10 public comments on the proposed rule to list the North
Pacific right whale as a separate, endangered species under the ESA.
The majority of the comments supported the proposed action. A summary
of the comments received and our response to each are presented below.
Comment 1: The Final Rule should contain any information gathered
as a result of the Minerals Management Service (MMS)/NOAA joint
collaborative research on North Pacific right whales.
Response: These dedicated research efforts are still ongoing.
Additional data are expected from upcoming aerial and shipboard
surveys.
Comment 2: One commenter stated that the draft Status Review is
inconsistent on the issue of population structure for right whales. It
sometimes implies that North Pacific right whales comprise a single
population and at other times suggests they consist of separate eastern
and western populations. The Marine Mammal Commission also recommended
NMFS recognize an eastern and a western North Pacific stock for
management purposes, and conduct research to determine if those
populations constitute DPSs.
Response: The final Status Review addresses this issue. This review
concludes that the generally accepted analyses by Rosenbaum et al.
(2000) constitute the best available scientific information regarding
current taxonomic classification of right whales. Rosenbaum et al.
(2000) concluded that the right whale should be regarded as three
separate species as follows: (1) the North Atlantic right whale (E.
glacialis), ranging in the North Atlantic Ocean; (2) the North Pacific
right whale (E. japonica), ranging in the North Pacific Ocean; and (3)
the southern right whales (E. australis), historically ranging
throughout the southern hemisphere's oceans.
The Status Review concludes that historically, right whales ranged
throughout the entire North Pacific north of 35[deg] N latitude (Braham
and Rice, 1984 Perry et al., 1999). The final Status Review notes that
the International Whaling Commission (IWC) considers that the question
of whether there are two populations of right whales in the North
Pacific remains open. The IWC did note in a review (IWC, 2001a) that
the different catch and recovery histories support the view that there
``were once at least two populations, at least with regard to feeding
ground divisions'' (see also Perry et al., 1998 and 1999). The final
Status Review notes that some researchers (e.g., Klumov, 1962; Brownell
et al., 2001) who have discussed the possibility that right whales in
the North Pacific exist in discrete eastern and western populations
have also suggested that the western group may occur in two different
populations. However, at present no subdivision of either population is
recognized. The idea that the western population can be further
subdivided into two parts (Omura, 1986) is regarded as unlikely, but
cannot be ruled out based on existing data (IWC, 2001a).
It is important to note that for purposes of this listing, we
recognize all right whales found in the North Pacific Ocean as members
of the single species, E. japonica, without further subdivision as sub-
species or DPSs under the provisions of the ESA.
Comment 3: Several commenters felt NMFS had overstated the concern
regarding the problem of right whale interaction with fishing gear.
Only one such case is reported which occurred in Russian waters. While
there have been two apparent cases of entanglement of bowhead whales by
fishing gear, it is questionable to extrapolate from these events
because of the rarity of such interactions and the fact that the
western arctic population of bowhead whales numbers ten times that of
the North Pacific right whale.
Response: The issue of interaction with North Pacific right whales
is not well understood. It may be inappropriate to make broad
conclusions on this issue from data on bowhead whales, and the known
number (one) of known or reported interactions with North Pacific right
whales is small. Also, one commenter correctly pointed out that fishing
practices differ between Russia and the United States, which may be an
important consideration in assessing this issue. The United States has
banned drift net fishing in the U.S. Exclusive Economic Zone (EEZ) and
has implemented limited entry fishery programs which reduce the numbers
of vessels and amount of fishing gear employed in many fisheries. Both
actions reduce the possibility for gear interaction.
Comment 4: More protection is needed from ship strikes for North
Pacific right whales. This is a very significant problem for North
Atlantic right whales. The lack of observed interactions in the North
Pacific may be an artifact of the small population size rendering such
events inherently infrequent, and the remoteness of their habitat
leading to any such interactions going unobserved.
Response: The threat of ship strikes is a very significant issue
for right whales in the North Atlantic, but very little evidence
suggests that ship strikes are an issue for North Pacific right whales.
However, we believe additional research and monitoring is appropriate,
and we intend to address the potential for ship strikes in a Recovery
Plan for North Pacific right whales. Preparation of a Recovery Plan
will follow the listing of this species.
Comment 5: The mere taxonomic reclassification of the right whale
should not re-open a process that was completed less than a year ago -
especially for a species with an even longer gestation period - with no
major ecological changes occurring in the interim.
Response: This action results in the listing of North Pacific right
whales as a separate endangered species pursuant to the ESA. We have
followed the procedure specified in the ESA for listing this species
and designating its critical habitat.
Summary of Comments in Response to the Proposed Rule to List the North
Atlantic Right Whale
The proposed rule to list the North Atlantic right whale as a
separate, endangered species (71 FR 77704; December 27, 2006) announced
a comment period that closed on February 26, 2007. We have reviewed all
comments received during the comment period and incorporated updated
data and information into appropriate sections of this rule. We
received nine public comments on the proposed rule to list the North
Atlantic right whale as a separate, endangered species under the ESA.
The majority of the comments supported the proposed action. A summary
of the comments received and our response to each are presented below.
In addition to soliciting and reviewing public comments, we are
required to seek peer review of our listing proposals. On July 1, 1994,
NMFS and
[[Page 12026]]
USFWS published a series of policies regarding listings under the ESA,
including a policy for peer review of proposed listings (59 FR 34270).
In accordance with this policy, we solicited the expert opinions of six
independent specialists regarding pertinent scientific or commercial
data and assumptions relating to the taxonomic, biological, and
ecological information on this species. We sent the proposed rule and
Status Review to these independent peer reviewers, but received no
responses from them.
Comment 6: A commenter opposed the proposed action to list right
whales in the northern hemisphere as two separate species under the ESA
and petitioned NMFS to list right whales globally as a single species
with the common name of black whale.
Response: We reviewed the petition and published a finding (72 FR
29974; May 30 2007) that the petition did not present substantial
scientific or commercial information indicating the listing of the
global populations of right whales as a single species may be
warranted. The best scientific data available supports the
determination that right whales found in the northern hemisphere exist
as two separate species, the North Atlantic right whale (E. glacialis)
and the North Pacific right whale (E. japonica).
As discussed above and in our proposed rule to list this species as
a separate, endangered species, new genetic data now provide
unequivocal support to distinguish three right whale lineages as
separate phylogenetic species (Rosenbaum et al., 2000). Rosenbaum et
al. (2000) concluded that the right whale should be classified as three
separate species as follows: (1) the North Atlantic right whale (E.
glacialis), historically ranging in the North Atlantic Ocean from
latitudes 60[deg] N to 20[deg] N; (2) the North Pacific right whale (E.
japonica), historically ranging in the North Pacific Ocean from
latitudes 70[deg] N to 20[deg] N; and (3) the southern right whale (E.
australis), historically ranging throughout the southern hemisphere's
oceans.
Comment 7: A commenter noted that while NMFS concludes that habitat
loss/degradation is not a factor jeopardizing the continued existence
of the North Atlantic right whale, the uptake of pollutants may
adversely impact reproduction. The commenter notes that the result of a
NMFS workshop on possible causes of reproductive failure in North
Atlantic right whales (Reeves et al., 2001) identifies chemical
contaminants as one possible explanation for low observed reproduction
rates observed in North Atlantic right whales.
Response: The proposed rule to list the North Atlantic right whale
as a separate, endangered species (71 FR 77704; December 27, 2006) and
the Status Review on which it is based identifies chemical contaminants
as a potential source of habitat degradation that might affect North
Atlantic right whales. We conclude, however, that there is no evidence
indicating that there are contaminant-related impacts on the species.
The existing data suggest that, because large baleen whales feed at a
lower trophic level compared to the toothed whales (odontocetes),
bioaccumulation of contaminants would be lower. The proposed rule and
Status Review note that the manner in which pollutants negatively
affect animals is complex and difficult to study, particularly in taxa
such as large whales. The Status Review concludes that more research is
needed to adequately address this issue.
Comment 8: One commenter stated that commercial and recreational
whale watching vessels and multiple scientific research permits should
not be allowed to adversely affect right whales.
Response: We continue to work actively with the commercial whale
watching industry to ensure its compliance with existing regulations
governing the approach of vessels within proscribed minimal distance
approach standards. Similarly, we continue to work to educate
recreational vessel operators about existing regulations we have
implemented to prevent harassment of marine mammals due to disturbances
that may be caused by the approach and interactions with recreational
vessels. Our Office of Law Enforcement works in cooperation with state
and private organizations to enforce existing regulations.
We are completing a Draft Environmental Impact Statement (DEIS)
under the National Environmental Policy Act (NEPA) that reviews the
process for issuing ESA section 10(a)(1)(A) scientific research permits
and permit amendments on right whale species in the North Atlantic and
North Pacific Oceans. The DEIS reviews several alternatives for a more
``programmatic'' approach that would allow us to better analyze the
potential collective environmental impact of research and other
activities on right whales. The DEIS reviews and analyzes the effects
of all research activities that have been conducted on right whales in
the proposed action area in the past 5 years and also recommends
several alternatives that would have specific 'take' targets for the
next 5 years based on that analysis. This approach is intended to
reduce takes of right whales due to research activities.
In addition, we are considering proposing changes to our
implementing regulations and criteria governing the issuance of permits
for scientific research and enhancement activities under section 104 of
the Marine Mammal Protection Act (MMPA)(72 FR 52339; September 13,
2007).
Comment 9: One commenter stated that NMFS has failed to adequately
protect right whales and that to date there has been inadequate action
undertaken to prevent mortalities and serious injuries affecting the
species. The commenter notes that it is currently engaged in ongoing
litigation against NMFS related to ship strikes and entanglement in
commercial fishing gear.
Response: The issue raised by the commenter is not germane to this
action to list North Atlantic and North Pacific right whales a
separate, endangered species under the ESA. Nonetheless, the proposed
rule notes and discusses the numerous ongoing and existing regulatory
and conservation measures in place to reduce the impact of ship strikes
on the survival and recovery of the species. These efforts involve
Federal, state, and local agencies, as well as conservation, academic,
and industry organizations (71 FR 77704; December 27, 2007, at 77709).
As required by the ESA, we have reviewed the factors listed under
section 4(a)(1), including the adequacy of existing regulatory
mechanisms. Based on this review, we have concluded that, while
regulatory mechanisms have provided increased protection to right
whales in the North Atlantic, human activities still result in serious
injuries and mortalities of right whales. The inadequacy of existing
regulatory mechanisms is a factor that places the North Atlantic right
whale in danger of extinction throughout its range.
Based on this determination, we have concluded that, despite
previous efforts, ship strikes and fishing gear interactions remain a
serious factor negatively affecting the continued survival and recovery
of the species. New conservation measures are being developed and
implemented with the intent of reducing the threat and frequency of
ship strikes and fishing gear interactions with right whales. These
measures will continue to be monitored to assess their effectiveness in
reducing the impact of these factors on the survival of the species.
Comment 10: A commenter stated that the literature used in the
proposed rule is dated. The commenter noted that ship
[[Page 12027]]
strike citations are only through 1999, though there are more recent
data. The commenter cited Kraus et al. (2005), stating that this
reference contains more recent information on likely rates of detected
and undetected death from both ship strikes and gear entanglement.
Response: Deaths from collisions with ships and entanglement in
fishing gear are significant impediments to the recovery of the
species. The proposed rule and Status Review correctly note ship
strikes as one of the greatest known causes of deaths of North Atlantic
right whales. While the commenter notes that at least one of our
literature citations related to ship strike mortalities seems dated,
the proposed rule and Status Review on which it was based provide and
consider additional current and up-to-date ship strike information. The
more recent scientific reference cited by the commenter provides
supportive data that are consistent with the determination that ship
strikes represent a significant threat to the North Atlantic right
whale.
The proposed rule and Status Review conclude that the most
significant factor placing the North Atlantic right whale in danger of
extinction remains human-related mortality, most notably, ship
collisions and entanglement in fishing gear. The available evidence
strongly suggests that the western population of North Atlantic right
whale cannot sustain the number of deaths that result from vessel and
fishing gear interactions. The actual number of deaths is almost
certainly higher than those documented, as some deaths go undetected or
unreported, and in many cases it is not possible to determine the cause
of death from recovered carcasses. The proposed rule and Status Review
conclude that it may be necessary to enhance existing regulations, or
promulgate new regulations, to reduce or eliminate the threat of ship
strikes and fishing gear entanglement. The citation proffered by the
commenter supports and reinforces our conclusion about the threat posed
to the species by ship strikes.
Comment 11: A commenter raised a number of issues related to the
potential impact of several broad categories of activities undertaken
by the U.S. Department of Defense (DoD). These comments include the
following related issues: (1) The proposed rule does not consider the
risk posed to right whales by DoD activities proposed in and around
right whales migratory routes in the mid-Atlantic; (2) right whales
that died concurrently with naval exercises off Florida in the 1990s
are not discussed; (3) possible impacts from Naval ordnance activities
near critical habitat in the southeast and northeast are not discussed;
and (4) the recent decision by the DoD to exempt its activities from
compliance with the mandates of the MMPA is not discussed.
Response: Any impact on right whales from DoD activities does not
change our determination that the North Atlantic right whale should be
listed as a separate, endangered species. As noted in the proposed rule
(71 FR 77704; December 27, 2006, at 77714), section 7(a)(2) of the ESA
requires that all Federal agencies ensure that any action they
authorize, fund, or carry out is not likely to jeopardize the continued
existence of endangered or threatened species or destroy or adversely
modify designated critical habitat. These agencies must consult with
NMFS on any action that may affect listed species or critical habitat
for species under the agency's jurisdiction (including right whales).
As a result of these consultations, we issue either a letter of
concurrence that the activity is not likely to adversely affect a
species or critical habitat, or a Biological Opinion (BO) for
activities likely to adversely affect a species or critical habitat. A
BO evaluates whether the activity is likely to jeopardize the continued
existence of the species or result in the destruction or adverse
modification of critical habitat and, if so, provides reasonable and
prudent alternatives to the activity. In those cases where we conclude
that an action (or implementation of any reasonable and prudent
alternatives) and the resultant incidental take of listed species is
not likely to jeopardize the continued existence of listed species, we
specify reasonable and prudent measures necessary and appropriate to
minimize effects of the action on the species of concern. We have
consulted under section 7(a)(2) of the ESA with a number of Federal
agencies, including the U.S. Navy, on several occasions for a variety
of activities, including those identified by the commenter.
North Pacific Right Whale (Eubalaena japonica)
Extinction Risk Assessment for the North Pacific Right Whale (Eubalaena
japonica)
To date, the largest number of North Pacific right whale
individuals identified in the eastern Bering Sea is 23 (based on
genetic sampling), while abundance in the western North Pacific appears
to number fewer than 1,000 individuals (with a minimum estimate near
400). Abundance estimates and other vital rate indices in both the
eastern and western North Pacific are not well established. Where such
estimates exist, they have very wide confidence limits. We find the
continued anthropogenic threats and other factors discussed below
demonstrate a high risk of extinction for the North Pacific right whale
throughout its range, into the foreseeable future.
The basic life history parameters and survey data, including
population abundance, growth rate, age structure, breeding ages, and
distribution, remain undetermined for North Pacific right whale. While
these data are necessary to perform quantitative population analyses or
to develop surrogate models to evaluate the risk of extinction, there
are a number of factors that put North Pacific right whales at
considerable risk of extinction. These include, but are not limited to,
the following: (1) Life history characteristics such as slow growth
rate, long calving intervals, and longevity; (2) strong depensatory or
Allee effects; (3) distorted age, size or structure of the population,
and reduced reproductive success; (4) habitat specificity or site
fidelity; and (5) habitat sensitivity. Please see the Proposed Rule (71
FR 77694; December 27, 2006) for a complete discussion of these issues.
Summary of Factors Affecting the North Pacific Right Whale (Eubalaena
japonica)
Section 4(a)(1) of the ESA and the listing regulations (50 CFR part
424) set forth procedures for listing species. We must determine,
through the regulatory process, if a species is endangered or
threatened because of any one or a combination of the following
factors: (1) the present or threatened destruction, modification, or
curtailment of its habitat or range; (2) over-utilization for
commercial, recreational, scientific, or educational purposes; (3)
disease or predation; (4) the inadequacy of existing regulatory
mechanisms; and (5) other natural or manmade factors affecting its
continued existence. A discussion of each of these considerations is
presented in the Proposed Rule (71 FR 77694; December 27, 2006). In
that discussion and analysis, we determined the North Pacific right
whale was endangered primarily because of the effects of commercial and
illegal whaling decimated this species and continue to account for its
status. Please see the Proposed Rule for a complete discussion of this
analysis.
Conservation Efforts for the North Pacific Right Whale (Eubalaena
japonica)
When considering the listing of a species, section 4 (b)(1)(A) of
the ESA
[[Page 12028]]
requires consideration of any efforts by any State, foreign nation, or
political subdivision of a State or foreign nation to protect such
species. The Proposed Rule (71 FR 77694; December 27, 2006) considered
this, and determined that there are no current conservation efforts in
place at this time specifically targeted towards the North Pacific
right whale in the North Pacific Ocean. Please see the Proposed Rule
for a complete discussion of this issue.
Listing Determination for the North Pacific Right Whale (Eubalaena
japonica)
We have reviewed the status of the North Pacific right whale,
considered the factors set forth in section 4 (a)(1) of the ESA, and
taken into account any conservation efforts to protect the species. We
conclude that the North Pacific right whale should be listed as an
endangered species under the ESA because it is in danger of extinction
throughout all of its range because of (1) overutilization for
commercial, recreational, scientific or educational purposes (see above
for a description of these section 4 (a)(1) factors). This endangered
determination is also supported by the fact that the factors
confounding recovery have not been thoroughly identified and may
continue to persist until more is known.
We also conclude that, at present, no protective or conservation
measures are in place that substantially mitigate the factors affecting
the future viability of this species. Based on the best available
information, we list the North Pacific right whale under the ESA as an
endangered species.
North Atlantic Right Whale (Eubalaena glacialis)
Extinction Risk Assessment for the North Atlantic Right Whale
(Eubalaena glacialis)
Sighting surveys from the eastern Atlantic Ocean suggest that right
whales present in this region are rare (Best et al., 2001). Abundance
estimates for the western North Atlantic stock remained relatively
stable during the 1990s (1992 - 295 individuals; 1996 263 individuals;
1998 - 299 individuals). However, no estimate of abundance with an
associated coefficient of variation has been calculated for this
population. All population growth models indicated a decline in right
whale survival in the 1990s relative to the 1980s with female survival,
in particular, apparently affected (Best et al., 2001; Waring et al.,
2002). An analysis of the age structure of this population suggests
that it contains a smaller proportion of juvenile whales than expected
(Hamilton et al., 1998; Best et al., 2001), which may reflect low
recruitment and/or high juvenile mortality. In addition, it is possible
that the apparently low reproductive rate is due in part to unstable
age structure or to decreased reproduction due to aging (i.e.,
reproductive senescence) on the part of some females (Waring et al.,
2004). The size of the western North Atlantic stock is likely reduced
significantly from historic levels, and this may have resulted in a
loss of genetic diversity that could affect the ability of the current
population to successfully reproduce (e.g., decreased conceptions,
increased abortions, increased neonate mortality). Despite
uncertainties in abundance and trend estimates, we find the continued
anthropogenic threats and other factors discussed below demonstrate a
high risk of extinction for the North Atlantic right whale throughout
its range, into the foreseeable future.
As with the North Pacific right whale, there are a number of
factors that put North Atlantic right whales at considerable risk of
extinction. These include, but are not limited to, the following: (1)
Life history characteristics such as slow growth rate, long calving
intervals, and longevity; (2) strong depensatory or Allee effects; (3)
distorted age, size, or structure of the population, and reduced
reproductive success; (4) habitat specificity or site fidelity; and (5)
habitat sensitivity. Please see the Proposed Rule (71 FR 77694;
December 27, 2006) for a complete discussion of these issues.
Summary of Factors Affecting the North Atlantic Right Whale (Eubalaena
glacialis)
Section 4(a)(1) of the ESA and the listing regulations (50 CFR part
424) set forth procedures for listing species. We must determine,
through the regulatory process, if a species is endangered or
threatened because of any one or a combination of the following
factors: (1) the present or threatened destruction, modification, or
curtailment of its habitat or range; (2) over-utilization for
commercial, recreational, scientific, or educational purposes; (3)
disease or predation; (4) the inadequacy of existing regulatory
mechanisms; and (5) other natural or manmade factors affecting its
continued existence. A discussion of each of these considerations is
presented in the Proposed Rule (71 FR 77704; December 27, 2006). In
that discussion and analysis, we determined the North Atlantic right
whale was endangered because of: (1) overutilization for commercial,
recreational scientific, or educational purposes; (2) the inadequacy of
existing regulatory mechanisms; and (3) other natural and manmade
factors affecting it continued existence. Please see the Proposed Rule
for a complete discussion of this analysis.
Conservation Efforts for the North Atlantic Right Whale (Eubalaena
glacialis)
When considering the listing of a species, section 4 (b)(1)(A) of
the ESA requires consideration of any efforts by any State, foreign
nation, or political subdivision of a State or foreign nation to
protect such species. Right whales have been listed under the ESA for
many years and numerous conservation measures have been implemented in
order to protect and conserve the species. For a complete discussion of
these measures, both current and past, see the proposed rule to list
North Atlantic right whale as a separate, endangered species under the
ESA (71 FR 77704; December 27, 2006) or the Review of the Status of
Right Whales in the North Atlantic and North Pacific Oceans.
Listing Determination for the North Atlantic Right Whale (Eubalaena
glacialis)
We have concluded, based on an analysis of the best scientific and
commercial data available, that listing the North Atlantic right whale
as a separate, endangered species (Eubalaena glacialis) under the ESA
is warranted. Based on an analysis of the best scientific and
commercial data available and after taking into consideration current
population trends and abundance, demographic risk factors affecting the
continued survival of the species, and ongoing conservation efforts, we
have determined that the North Atlantic right whale is in danger of
extinction throughout its range because of: (1) overutilization for
commercial, recreational scientific, or educational purposes; (2) the
inadequacy of existing regulatory mechanisms; and (3) other natural and
manmade factors affecting its continued existence. Because the right
whale is a long-lived species, extinction may not occur in the
immediate future, but the possibility of biological extinction in the
next century is very real. This endangered determination is also
supported by the fact that the factors confounding recovery have not
been thoroughly identified and may continue to persist until more is
known. We also conclude that, at present, no protective or conservation
measures are in place that substantially mitigate the factors
[[Page 12029]]
affecting the future viability of this species. Based on the best
available information, we list the North Atlantic right whale under the
ESA as an endangered species.
Prohibitions and Protective Measures
Section 9 of the ESA prohibits certain activities that directly or
indirectly affect endangered species. These prohibitions apply to all
individuals, organizations, and agencies subject to U.S. jurisdiction.
Sections 7(a)(2) of the ESA requires Federal agencies to consult
with us to ensure that activities they authorize, fund, or conduct are
not likely to jeopardize the continued existence of a listed species or
destroy or adversely modify critical habitat. If a Federal action may
affect a listed species or its critical habitat, the responsible
Federal agency must enter into consultation with NMFS. Examples of
Federal actions that may affect the North Pacific and North Atlantic
right whales include coastal development, oil and gas development,
seismic exploration, point and non-point source discharge of
contaminants, contaminated waste disposal, water quality standards,
activities that involve the release of chemical contaminant and/or
noise, vessel operations, research, and fishery management practices.
Sections 10(a)(1)(A) and (B) of the ESA authorize NMFS to grant
exceptions to the ESA's Section 9 ``take'' prohibitions. Section
10(a)(1)(A) scientific research and enhancement permits may be issued
to entities (Federal and non-federal) for scientific purposes or to
enhance the propagation or survival of a listed species. The types of
activities potentially requiring a section 10(a)(1)(A) research/
enhancement permit include scientific research that targets North
Pacific and North Atlantic right whales. Under section 10(a)(1)(B), the
Secretary may permit takings otherwise prohibited by section 9(a)(1)(B)
if such taking is incidental to, and not the purpose of, the carrying
out of an otherwise lawful activity.
NMFS Policies on Endangered and Threatened Fish and Wildlife
On July 1, 1994, we and FWS published a series of policies
regarding listings under the ESA, including a policy for peer review of
scientific data (59 FR 34270) and a policy to identify, to the maximum
extent possible, those activities that would or would not constitute a
violation of section 9 of the ESA (59 FR 34272).
Role of Peer Review
The intent of the peer review policy is to ensure that listings are
based on the best scientific and commercial data available. As noted
above (see introductory language in Summary of Comments in Response to
the Proposed Rule to List the North Atlantic Right Whale), we solicited
the expert opinions and review of six independent, qualified
specialists, concurrent with the public comment period. The Status
Review, which was the basis for the proposed rules to list North
Pacific and North Atlantic right whales as separate, endangered
species, discussed both the North Pacific and North Atlantic right
whales.
Identification of Those Activities That Would Constitute a Violation of
Section 9 of the ESA
The intent of this policy is to increase public awareness of the
effect of our ESA listing on proposed and ongoing activities within the
species' range. We identify, to the extent known, specific activities
that will be considered likely to result in violation of section 9, as
well as activities that will not be considered likely to result in
violation. Activities that we believe could result in violation of
section 9 prohibitions against ``take'' of the North Pacific right
whale or North Atlantic right whale include, but are not limited to,
the following: (1) Operating vessels in a manner that results in ship
strikes or disrupts foraging, resting, or care for young or results in
noise levels that disrupt foraging, communication, resting, or care for
young; (2) fishing practices that result in entanglement when lines,
nets, or other gear are placed in the water column; (3) coastal
development that adversely affects right whales (e.g., dredging, waste
treatment); (4) discharging or dumping toxic chemicals or other
pollutants into areas used by North Pacific or North Atlantic right
whales; (5) scientific research activities; and (6) land/water use or
fishing practices that result in reduced availability of prey species
during periods when North Pacific or North Atlantic right whales are
present.
We believe, based on the best available information, the following
actions will not result in a violation of Section 9: (1) federally
funded or approved projects for which ESA section 7 consultation has
been completed, and that are conducted in accordance with any terms and
conditions we provide in an incidental take statement accompanying a
biological opinion; and (2) takes of North Pacific or North Atlantic
right whales that have been authorized by NMFS pursuant to section 10
of the ESA.
These lists are not exhaustive. They are intended to provide some
examples of the types of activities that we might or might not consider
as constituting a take of North Pacific or North Atlantic right whales.
Classification
National Environmental Policy Act (NEPA)
ESA listing decisions are exempt from the requirement to prepare an
environmental assessment or environmental impact statement under the
NEPA. See NOAA Administrative Order 216-6.03(e)(1) and Pacific Legal
Foundation v. Andrus, 657 F.2d 825 (6\th\ Cir. 1981). Thus, we have
determined that the final listing determinations for North Pacific and
North Atlantic right whales described in this notice are exempt from
the requirements of the NEPA.
Regulatory Flexibility Act (RFA)
As noted in the Conference Report on the 1982 amendments to the
ESA, economic impacts cannot be considered when assessing the status of
a species. Therefore, the economic analysis requirements of the RFA are
not applicable to the listing process.
Regulatory Planning and Review - Executive Order (E.O.) 12866
This final rule to list North Pacific and North Atlantic right
whales as two separate, endangered species is exempt from review under
E. O. 12866.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This final rule does not contain new or revised information
collection for which OMB approval is required under the Paperwork
Reduction Act. This rule will not impose recordkeeping or reporting
requirements on State or local governments, individuals, businesses, or
organizations. An agency may not conduct or sponsor, and a person is
not required to respond to, a collection of information unless it
displays a currently valid OMB control number.
Federalism
E.O. 13132 requires agencies to take into account any federalism
impacts of regulations under development. It includes specific
consultation directives for situations where a regulation will preempt
state law, or impose substantial direct compliance costs on state and
local governments (unless required by statute). Neither of these
circumstances is applicable to these final listing
[[Page 12030]]
determinations. In keeping with the intent of the Administration and
Congress to provide continuing and meaningful dialogue on issues of
mutual State and Federal interest, we provided the proposed rules to
the relevant state agencies in each state in which the North Pacific
right whale and the North Atlantic right whale is believed to occur,
and these state agencies were invited to comment.
Government-to-Government Relationship With Tribes - E.O. 13175
The longstanding and distinctive relationship between the Federal
and tribal governments is defined by treaties, statutes, executive
orders, judicial decisions, and agreements, which differentiate tribal
governments from the other entities that deal with, or are affected by,
the Federal Government. This relationship has given rise to a special
Federal trust responsibility involving the legal responsibilities and
obligations of the United States toward Indian Tribes and the
application of fiduciary standards of due care with respect to Indian
lands, tribal trust resources, and the exercise of tribal rights. E.O.
13175 - Consultation and Coordination with Indian Tribal Governments-
outlines the responsibilities of the Federal Government in matters
affecting tribal interests.
We have determined the listing of the North Pacific and North
Atlantic right whale will not have tribal implications, nor affect any
tribal governments or issues. The North Pacific right whale is not
hunted by Native Americans for traditional use or subsistence purposes.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act, we make the
following findings:
(a) This final rule listing the North Pacific right whale and North
Atlantic right whale as endangered will not produce a Federal mandate.
In general, a Federal mandate is a provision in legislation, statute,
or regulation that would impose an enforceable duty upon State, local,
tribal governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. (At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement.) ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (I) a condition of Federal assistance; or (ii) a
duty arising from participation in a voluntary Federal program.''
ESA listing does not impose a legally binding duty on non-Federal
government entities or private parties. Under the ESA, the only
regulatory effect is that Federal agencies must ensure that their
actions do not jeopardize the continued existence of the species. While
non-Federal entities who receive Federal funding, assistance, permits
or otherwise require approval or authorization from a Federal agency
for an action may be indirectly impacted by the ESA listings, the legal
duty to avoid jeopardy is borne by the Federal agency. Furthermore, to
the extent that non-Federal entities are indirectly impacted because
they receive Federal assistance or participate in a voluntary Federal
aid program, the Unfunded Mandates Reform Act would not apply; nor
would the listing shift the costs of the large entitlement programs
listed above to State governments.
(b) Due to the prohibition against take of this species both within
and outside of the designated areas, we do not anticipate that this
final rule will significantly or uniquely affect small governments. As
such, a Small Government Agency Plan is not required.
Civil Justice Reform
In accordance with E.O. 12988, the Department of Commerce has
determined that this final rule does not unduly burden the judicial
system and meets the requirements of sections 3(a) and 3(b)(2) of the
E.O.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from the NMFS (see ADDRESSES).
List of Subjects in 50 CFR Part 224
Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements,
Transportation.
Dated: February 29, 2008.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, we amend 50 CFR part 224 as
follows:
PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 224 continues to read as follows:
Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
0
2. Revise Sec. 224.101(b) to read as follows:
Sec. 224.101 Enumeration of endangered marine and anadromous species.
* * * * *
(b) Marine mammals. Blue whale (Balaenoptera musculus); Bowhead
whale (Balaena mysticetus); Caribbean monk seal (Monachus tropicalis);
Chinese river dolphin (Lipotes vexillifer); Cochito (Phocoena sinus);
Fin or finback whale (Balaenoptera physalus); Hawaiian monk seal
(Monachus schauinslandi); Humpback whale (Megaptera novaeangliae);
Indus River dolphin (Platanista minor); Mediterranean monk seal
(Monachus monachus); North Atlantic right whale (Eubalaena glacialis);
North Pacific right whale (Eubalaena japonica); Southern right whale
(Eubalaena australis); Saimaa seal (Phoca hispida saimensis); Sei whale
(Balaenoptera borealis); Sperm whale (Physeter catodon); Western North
Pacific (Korean) gray whale (Eschrichtius robustus); Steller sea lion,
western population, (Eumetopias jubatus), which consists of Steller sea
lions from breeding colonies located west of 144[deg] W. longitude.
* * * * *
[FR Doc. E8-4376 Filed 3-5-08; 8:45 am]
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